Communications Security and Surveillance Act Undermines the Rule of Law
United Daily News editorial (Taipei, Taiwan, ROC)
July 17, 2014
Summary: The Legislative Yuan rationalized its intervention in the Wang Ker influence peddling scandal by arguing that the Special Investigation Unit and President Ma committed too many procedural errors. But the Communications Security and Surveillance Act concerns national law and public safety. It turns justice on its head. The only thing it is doing is hurting Taiwan.
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The new "Communications Security and Surveillance Act" has been in effect for only two weeks. But it has already created difficulties for criminal prosecutors and police investigators. Even police emergency response personnel have run up against brick walls and found themselves unable to act. The new law will be difficult to enforce and represents faulty legislation. Ruling and opposition legislators acted recklessly during the Wang Ker influence peddling scandal. In order to exact revenge upon the Special Investigation Unit, they indiscriminately amended the law. They made it easier to commit crimes. Even worse, they made it harder to protect the rights of decent citizens.
The Tainan City Police Department recently received an emergency call. A chronically ill senior citizen ran away from home. His family sought police assistance locating his whereabouts. But according to the newly implemented Communications Security and Surveillance Act, the police may not access his phone records, or locate him via his mobile phone. They were required to first submit a written request to a judge, between 9:00 am and 5:00 pm. The judge failed to respond. All the police and the man's family could do was to send out email alerts. Eventually they found him, late at night, burning charcoal in a car. The police are concerned that if the law is not amended future rescue attempts could face similar delays.
As everyone knows, the intent of the Communications Security and Surveillance Act was to help Wang Jin-pyng and Ker Chien-ming evade prosecution during lost year's Ma vs. Wang political struggle. The legislature underwent major mobilization to exact revenge upon the Special Investigation Unit for wire-tapping Wang and Ker's conversations. Ruling and opposition party legislators colluded to overhaul the provisions of the Communications Security and Surveillance Act, to put an end to "all you can eat cases." They sharply limited prosecutorial latitude in wire-tapping. They imposed far more stringent requirements. Unless the crime was a felony, police could no longer access phone records. This move ostensibly protected human rights and citizen privacy. In fact it merely increased the number of hoops crime prosecutors and police investigators had to jump through. In effect, it provided a safety net for criminals. It even tied the hands and feet of police when responding to emergencies.
Law enforcement and judicial authorities were aware of the potential impact even before the Legislative Yuan amended the law. In particular, they were aware of the many new restrictions on the investigative process. These included cumbersome procedures before initiating investigations or obtaining wire-taps. Jurisdiction was limited to "one person, one case." The motive was to obstruct investigations. The result was to protect criminals. But many legislators were consumed by "anti-Ma" hatred. They turned a deaf ear to law enforcement. Therefore something seldom seen happened. Ruling and opposition party legislators worked hand in glove. They co-authored an amendment to the Communications Security and Surveillance Act that abused their power, undermined the rule of law, and harmed the public. Sure enough, as soon as the new law went into effect, its defects were immeidately obvious.
The general response to the new Communications Security and Surveillance Act may contribute to an increase in crime. One. Article XI states that only the most serious offenses qualify -- those that call for a minimum three year sentence. Only then can one ask a judge for access to communication records. As a result, many cases affecting the public interest, such as missing persons, fraud, and theft, will probably remain unsolved, seriously undermining order and harming the public.
Two. The "one person, one case" limitation on wire-taps is unreasonable. Many crimes are committed by groups, including conspiracies. Official collusion with business involves many people. The Communications Security and Surveillance Act stipulates that if prosecutors and police intercept information about another case, that information must submitted to a judge for approval within seven days. Only then can it be used in evidence. Violators are subject to three years imprisonment. In other words, if a prosecutor investigates a drug trafficking case, and his wire-tap undovers a murder, it cannot be used in evidence unless it is reported in a timely manner. The investigators may even be subject to prosecution. Such legislation protects criminals while tying the hands of law enforcement. How can it possibly increase public safety or protect the public interest?
Three. The new law overestimates the probability of abuse of power by prosecutors and police and underestimates the consequences of negligence on the part of judges. Last year Taichung police investigated the murder of female college student named Chen. Four wiretap requests were rejected. The result was a six month long delay before the murder was solved. In the previously mentioned case, people in Tainan asked police to locate their father. The court was slow to respond. In fact, when the Communications Security and Surveillance Act was being amended, judges dismissed as many as 30% of investigators' wiretap requests. This could lead to a lower solution rate for criminal cases, including of bribery, fraud, and emergency rescue. Such cases could become insoluble.
Admittedly, prosecutors and police sometimes abuse wiretaps. They are sometimes sloppy and engage in false prosecution. They sometimes violate the law. When they do, executive and judicial agencies should punish them. The legislative branch should amend the laws to regulate them. But the amending of the Communications Security and Surveillance Act was a legislative hatchet job. It was nothing more than a flaunting of their authority. That was why they included Article 32, which states that "The Legislative Yuan shall send representatives to monitor wire-tapping agencies." The legislature clearly granted itself the authority to intervene in the criminal justice process. How can the public possibly accept this?
The Legislative Yuan rationalized its intervention in the Wang Ker influence peddling scandal by arguing that the Special Investigation Unit and President Ma committed too many procedural errors. But the Communications Security and Surveillance Act concerns national law and public safety. It turns justice on its head. The only thing it is doing is hurting Taiwan.
2014.07.17 03:02 am